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A02406 Summary:

BILL NOA02406
 
SAME ASSAME AS S01414
 
SPONSORPaulin
 
COSPNSRDinowitz, Galef, Gottfried, Mosley, Simon, Jaffee, Blake, Hooper, Buchwald, Abinanti, Otis, Steck, Fahy, Taylor, D'Urso, Simotas, Ortiz, Englebright, Weprin, Hevesi, Mayer, Perry, Seawright, Titone, Bichotte
 
MLTSPNSR
 
Amd 400.00, add 400.20, Pen L; amd 897 & 898, Gen Bus L
 
Establishes a waiting period before a firearm, shotgun or rifle may be delivered to a person; requires either the National Instant Criminal Background Check System (NICS) or its successor has issued a "proceed" response to the licensee, or ten business days have elapsed since the date the licensee, seller, transferor or dealer contacted NICS to initiate a national instant criminal background check and NICS has not notified the licensee, seller, transferor or dealer that the transfer of the firearm, rifle or shotgun to such person should be denied.
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A02406 Actions:

BILL NOA02406
 
01/20/2017referred to codes
01/03/2018referred to codes
03/05/2018reported referred to rules
03/06/2018reported
03/06/2018rules report cal.10
03/06/2018ordered to third reading rules cal.10
03/06/2018passed assembly
03/06/2018delivered to senate
03/06/2018REFERRED TO CODES
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A02406 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A2406       Revised 4/5/17
 
SPONSOR: Paulin
  TITLE OF BILL: An act to amend the penal law and the general business law, in relation to establishing a waiting period before a firearm, shotgun or rifle may be delivered to a person   PURPOSE: To establish a waiting period before a licensed gun dealer may deliver a firearm, shotgun or rifle to a purchaser   SUMMARY OF PROVISIONS: Section one amends subdivision 12 of section 400.00 of the penal law, as amended by chapter 1 of the laws of 2013, to provide that before deliv- ering a firearm to any person, the licensed gun dealer shall in addition to requiring such person to produce either a license valid under this section to carry or possess the same, or proof of lawful authority as an exempt person pursuant to section 265.20, either (i) the National Instant Criminal Background Check System or its successor (NICS) has issued a "proceed" response to the licensee, or (ii) ten business days have elapsed since the date the licensee contacted NICS to initiate a national instant criminal background check and NICS has not notified the licensee that the transfer of the firearm to such person should be denied. Section two amends the penal law by adding a new section 400.20 to provide that when a national instant criminal background check is required pursuant to state or federal law to be conducted through NICS in connection with the sale or transfer of a rifle or shotgun to any person, before delivering a rifle or shotgun to such person, either (i) NICS has issued a "proceed" response to the seller or transferor, or (ii) ten business days shall have elapsed since the date the seller or transferor contacted NICS to initiate a national instant criminal back- ground check and NICS has not notified the seller or transferor that the transfer of the rifle or shotgun to such person should be denied. Section three amends subdivision 1 of section 897 of the general busi- ness law, as added by chapter 189 of the laws of 2000, to provide that before delivering a firearm, rifle or shotgun to any person, either (i) NICS has issued a "proceed" response to the seller or transferor, or (ii) ten business days shall have elapsed since the date the seller or transferor contacted NICS to initiate a national instant criminal back- ground check and NICS has not notified the seller or transferor that the transfer of the firearm, rifle or shotgun to such person should be denied. Section four amends subdivisions .1 and 2 of section 898 of the general business law, as added by chapter 1 of the laws of 2013, to provide that when a sale, exchange or disposal is conducted pursuant to a person's federal firearms license, before delivering a firearm, rifle or shotgun to any person, either (i) NICS has issued a "proceed" response to the federal firearms licensee, or (ii) ten business days shall have elapsed since the date the federal firearms licensee contacted NICS to initiate a national instant criminal background check and NICS has not notified the federal firearms licensee that the transfer of the firearm, rifle or shotgun to such person should be denied. In addition, the section provides that before a dealer who consents to conduct a national instant criminal background check delivers a firearm, rifle or shotgun to any person, either (i) NICS has issued a "proceed" response to the dealer, or (ii) ten business days shall have elapsed since the date the dealer contacted NICS to initiate a national instant criminal background check and NICS has not notified the dealer that the transfer of the firearm, rifle or shotgun to such person should be denied. Section five provides the effective date.   JUSTIFICATION: There is currently no law to prevent known or suspected terrorists from buying a firearm. Since 2004, more than 2,000 guns were purchased by individuals on the Terror Watch List. Discussions with NICS (National Instant Criminal Background Check System) Section personnel at the FBI revealed that New York can take one simple step to address this unacceptable flaw. Federal law requires licensed gun dealers to obtain a NICS background check before selling a firearm and the NICS response to deny or proceed with the sale must be reported to the gun dealer within 3 business days. The gun dealer must deny the sale if the background check determines that the buyer is one of 9 categories of prohibited purchaser.* Presence on the Terror Watch List is not, absent a change in federal law, a prohibited category. Even though being on the Terror Watch List does not disqualify a person from purchasing a firearm, the FBI checks the Terror Watch List when it conducts a NICS check. If the proposed purchaser is on the Terror Watch List, the FBI cannot deny the sale because being on the Terror Watch List is not a prohibited purchaser category. In addition, because the FBI is not authorized, without a change at the federal level, to reveal that the proposed purchaser is on the Terror Watch List,** the FBI must instead utilize the short time frame of 3 business days (issuing a "delayed" response to the gun dealer) to discover a reason to deny the purchase based on one of the 9 prohibited purchaser categories. NICS Section personnel at the FBI have made it clear in discussions that we need to give the FBI more time than 3 business days to conduct and complete the background check of a prospective buyer before the firearm is transferred to the buyer. In 2014, in approximately 9 percent of NICS checks, a "delayed" response was issued because there may have been a match to the Terror Watch List but there was no known prohibitor revealed within 3 business days, records were incomplete or more time was needed to complete the background check within 3 business days. In conducting a NICS check, the FBI often must investigate or follow up on information contained in the NICS databases by contacting local, state, and federal law enforcement agencies as well as the courts since the databases may not reflect current information.*** The very nature of processing information by a state regarding for example mental health and drug abuse - information which may constitute the basis for one of the 9 categories prohibiting the purchase of a firearm - renders it nearly impossible for a state to transmit such information instantane- ously to the NICS databases, necessitating the FBI to undertake addi- tional investigation to determine whether a proposed purchaser is a prohibited purchaser. Based on discussions with the Office of Court Administration (OCA) and the Department of Criminal Justice Services (DCJS), we know that New York is one of the most effective states in electronically delivering relevant records to NICS. Nonetheless, there are still lags in making sure that information in the NICS databases is complete and up-to-date. For example, county, village and town courts will report to DCJS a defendant's arraignment on a misdemeanor assault charge. In some courts, however, even if a guilty verdict is entered and a judgment of conviction is rendered, the conviction is not reported until after sentencing, which in some cases could be 12 to 13 weeks after entry of the guilty verdict. Accordingly, if a defendant were to attempt to buy a gun during this 12 to 13-week period, a background check of the NICS databases, without additional investigation, would not reveal the guilty verdict or conviction and the defendant would not be prohibited from buying the gun even if the misdemeanor assault constituted a misdemeanor crime of domestic violence, one of the 9 categories prohibiting a purchase. The time lag is exacerbated in those areas where a court meets less frequently, such as once a month, resulting in once a month reports to DCJS.**** Even though New York enacted a law which created a process to indicate on a defendant's criminal record a conviction on a misdemeanor that constitutes a misdemeanor crime of domestic violence,***** if the conviction occurred prior to enactment of the law, the FBI would need to investigate whether the required elements of a misdemeanor crime of domestic violence were present to prohibit the purchase. In cases where additional information is needed, an FBI examiner would need to first identify the correct court in which conviction had been rendered, contact the court clerk responsible for the relevant case file, and have the file retrieved, which may not be possible within three business days. In the absence of a determination within 3 business days that a sale should be denied or may proceed, it is in the discretion of the licensed gun dealer to complete the sale of the firearm after 3 business days (known as a "default proceed"). Because our law is structured in this way, if a prospective purchaser is on the Terror Watch List and one of the 9 prohibitors exists but the information that provides the basis for the prohibitor is not timely reported or is not readily obtainable through further investigation within 3 business days, the suspected terrorist can legally buy the firearm. According to the FBI, more than 15,000 gun sales went forward between 2010 and 2014 to individuals who should have been prohibited because the determination whether to deny or proceed could not be made within 3 business days. Once a sale of a firearm has been completed, it is much more difficult to take the firearm out of the hands of the gun owner. Even if it is later discovered that the purchaser was in fact a person prohibited from purchasing a firearm, the FBI must notify the Bureau of Alcohol, Tobacco and Firearms (ATF). The ATF must then track down the purchaser and retrieve the purchased firearm. In cases where a "delayed" response is issued, three business days is plainly inadequate to complete the necessary investigation to determine whether a person.can buy a gun, rifle or shotgun. This bill extends the time for background checks for purchases from 3 business days to 10 business days. Requiring licensed gun dealers to wait an additional 7 business days before a transaction may proceed will provide the FBI the critical additional time to gather the information it needs to determine whether the proposed purchaser is prohibited from buying a gun, rifle or shotgun without impinging on the right of law-abiding individuals to buy a gun, rifle or shotgun. It is important to remember -- and this legis- lation will not change this - where a background check is "clean," i.e. reveals no hits in the NICS databases, the buyer may purchase the firearm without delay. A number of states, including California, Maryland, Washington, Tennes- see and Pennsylvania, have already mandated additional time for law enforcement to conduct background checks. The FBI stated that a state can extend background check time when the FBI conducts the NICS checks, or create a waiting period, pointing out that the law should focus on the responsibility of the dealer to transfer the gun and not on the FBI to conduct the check within a certain period of time, which this legis- lation achieves. Two states, Minnesota and Rhode Island, where the deal- ers contact the NICS unit to conduct NICS background checks, establish a seven day waiting period. In the wake of increased terrorist attacks throughout the country, it is vital that we adopt common sense measures to keep firearms out of the hands of known and suspected terrorists. Extending the amount of time allowed for a background check to provide the FBI additional time to conduct its investigation is a most effective and practical means to ensure that both legally prohibited persons and known and suspected terrorists cannot buy a firearm, rifle or shotgun in New York.   LEGISLATIVE HISTORY: A.9433-A, 2016 amended and recommitted to codes. Same as S.7596, 2016 referred to codes.   FISCAL IMPLICATIONS: None to the State.   EFFECTIVE DATE: This act shall take effect on the sixtieth day after it shall have become a law. *The nine categories of prohibited purchasers are: (1) a convicted felon; (2) a fugitive from justice; (3) an unlawful user of or addicted to any controlled substance; (4) a person adjudicated as a mental defective or who has been committed to a mental institution; (5) an illegal alien or an alien on a non-immigrant visa; (6) a person discharged dishonorably from the Armed Forces; (7) a United States citi- zen who has renounced citizenship; (8) a person who is subject to a court order restraining him or her from harassing, stalking, or threat- ening an intimate partner, his/her child, or the child of his/her inti- mate partner; or (9) a person convicted of a misdemeanor crime of domes- tic violence. 18 U.S.C. § 922(g). **State law, legislation or other action to ban suspected terrorists from purchasing a gun violates the prohibition on the FBI from revealing presence on the Terror Watch List and are likely unenforceable absent authorization or waiver by federal action. ***The accuracy and completeness of the NICS databases are dependent on the states to transmit to NICS relevant and current information. ****Although we understand that 90% of the village and town courts have electronic reporting capability, there are courts who still manually file written reports. It is unknown how timely those reports are filed following court proceedings. *****Ch.258 of the Laws of 2011.
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A02406 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          2406
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 20, 2017
                                       ___________
 
        Introduced  by  M.  of  A.  PAULIN,  DINOWITZ, GALEF, GOTTFRIED, MOSLEY,
          SIMON, JAFFEE, BLAKE, HOOPER, BUCHWALD, ABINANTI, OTIS, STECK --  read
          once and referred to the Committee on Codes
 
        AN  ACT to amend the penal law and the general business law, in relation
          to establishing a waiting period before a firearm,  shotgun  or  rifle
          may be delivered to a person
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Subdivision 12 of section  400.00  of  the  penal  law,  as
     2  amended by chapter 1 of the laws of 2013, is amended to read as follows:
     3    12.  Records required of gunsmiths and dealers in firearms. Any person
     4  licensed as gunsmith or dealer in firearms  shall  keep  a  record  book
     5  approved  as to form, except in the city of New York, by the superinten-
     6  dent of state police. In the record book shall be entered at the time of
     7  every transaction involving a firearm the date,  name,  age,  occupation
     8  and residence of any person from whom a firearm is received or to whom a
     9  firearm  is delivered, and the calibre, make, model, manufacturer's name
    10  and serial number, or if none, any other distinguishing number or  iden-
    11  tification  mark  on  such  firearm.  Before delivering a firearm to any
    12  person, the licensee shall require him to produce either a license valid
    13  under this section to carry or possess the  same,  or  proof  of  lawful
    14  authority as an exempt person pursuant to section 265.20 of this chapter
    15  and  either  (a)  the  National Instant Criminal Background Check System
    16  (NICS) or its successor has issued a "proceed" response to the licensee,
    17  or (b) ten business days  have  elapsed  since  the  date  the  licensee
    18  contacted  NICS to initiate a national instate criminal background check
    19  and NICS has not notified the licensee that the transfer of the  firearm
    20  to  such  person  should  be  denied.   In addition, before delivering a
    21  firearm to a peace officer, the  licensee  shall  verify  that  person's
    22  status  as  a  peace  officer  with  the division of state police. After
    23  completing the foregoing, the  licensee  shall  remove  and  retain  the
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01251-01-7

        A. 2406                             2
 
     1  attached  coupon  and enter in the record book the date of such license,
     2  number, if any, and name of the licensing officer, in the  case  of  the
     3  holder  of a license to carry or possess, or the shield or other number,
     4  if  any,  assignment  and  department, unit or agency, in the case of an
     5  exempt person. The original transaction report shall be forwarded to the
     6  division of state police within ten days of delivering a firearm to  any
     7  person,  and  a duplicate copy shall be kept by the licensee. The super-
     8  intendent of state police  may  designate  that  such  record  shall  be
     9  completed  and transmitted in electronic form. A dealer may be granted a
    10  waiver from transmitting such records in electronic form if  the  super-
    11  intendent  determines that such dealer is incapable of such transmission
    12  due to technological limitations that  are  not  reasonably  within  the
    13  control  of  the dealer, or other exceptional circumstances demonstrated
    14  by the dealer, pursuant to a process established in regulation,  and  at
    15  the discretion of the superintendent. Records assembled or collected for
    16  purposes of inclusion in the database created pursuant to section 400.02
    17  of  this  article shall not be subject to disclosure pursuant to article
    18  six of the public officers law. The record book shall be  maintained  on
    19  the premises mentioned and described in the license and shall be open at
    20  all  reasonable hours for inspection by any peace officer, acting pursu-
    21  ant to his special duties, or police officer. In the event of  cancella-
    22  tion or revocation of the license for gunsmith or dealer in firearms, or
    23  discontinuance  of  business  by  a  licensee, such record book shall be
    24  immediately surrendered to the licensing officer  in  the  city  of  New
    25  York,  and  in  the counties of Nassau and Suffolk, and elsewhere in the
    26  state to the executive department, division of state police.
    27    § 2. The penal law is amended by adding a new section 400.20  to  read
    28  as follows:
    29  § 400.20 Waiting  period  in  connection  with the sale or transfer of a
    30             rifle or shotgun.
    31    When a national instant criminal background check is required pursuant
    32  to state or federal law to be conducted  through  the  National  Instant
    33  Criminal  Background  Check System (NICS) or its successor in connection
    34  with the sale or transfer of a rifle or shotgun to  any  person,  before
    35  delivering a rifle or shotgun to such person, either (a) NICS has issued
    36  a  "proceed"  response  to the seller or transferor, or (b) ten business
    37  days shall  have  elapsed  since  the  date  the  seller  or  transferor
    38  contacted  NICS to initiate a national instant criminal background check
    39  and NICS has not notified the seller or transferor that the transfer  of
    40  the rifle or shotgun to such person should be denied.
    41    §  3.  Subdivision  1  of  section 897 of the general business law, as
    42  added by chapter 189 of the laws of 2000, is amended to read as follows:
    43    1. A national instant criminal background check shall be conducted and
    44  no person shall sell or transfer a firearm, rifle or shotgun  at  a  gun
    45  show,  except  in  accordance  with  the provisions of 18 U.S.C. 922(t),
    46  provided that before delivering a  firearm,  rifle  or  shotgun  to  any
    47  person, either (a) the National Instant Criminal Background Check System
    48  (NICS) or its successor has issued a "proceed" response to the seller or
    49  transferor,  or  (b) ten business days shall have elapsed since the date
    50  the seller or transferor contacted NICS to initiate a  national  instant
    51  criminal  background  check  and  NICS  has  not  notified the seller or
    52  transferor that the transfer of the firearm, rifle or  shotgun  to  such
    53  person should be denied.
    54    §  4. Subdivisions 1 and 2 of section 898 of the general business law,
    55  as added by chapter 1 of the laws  of  2013,  are  amended  to  read  as
    56  follows:

        A. 2406                             3
 
     1    1.  In addition to any other requirements pursuant to state and feder-
     2  al  law,  all sales, exchanges or disposals of firearms, rifles or shot-
     3  guns shall be conducted in accordance  with  this  section  unless  such
     4  sale, exchange or disposal is conducted by a licensed importer, licensed
     5  manufacturer  or licensed dealer, as those terms are defined in 18 USC §
     6  922, when such sale, exchange or disposal is conducted pursuant to  that
     7  person's  federal firearms license or such sale, exchange or disposal is
     8  between members of  an  immediate  family.  When  a  sale,  exchange  or
     9  disposal  is  conducted pursuant to a person's federal firearms license,
    10  before delivering a firearm, rifle or shotgun to any person, either  (a)
    11  the  National  Instant  Criminal  Background  Check System (NICS) or its
    12  successor has issued a "proceed" response to the federal firearms licen-
    13  see, or (b) ten business days shall have  elapsed  since  the  date  the
    14  federal  firearms licensee contacted NICS to initiate a national instant
    15  criminal background check and NICS has not notified the federal firearms
    16  licensee that the transfer of the firearm,  rifle  or  shotgun  to  such
    17  person should be denied.  For purposes of this section, "immediate fami-
    18  ly" shall mean spouses, domestic partners, children and step-children.
    19    2.  Before  any sale, exchange or disposal pursuant to this article, a
    20  national instant criminal background check must be completed by a dealer
    21  who consents to conduct such check, and upon completion  of  such  back-
    22  ground  check,  shall  complete  a  document, the form of which shall be
    23  approved by the superintendent of  state  police,  that  identifies  and
    24  confirms that such check was performed.  Before a dealer who consents to
    25  conduct a national instant criminal background check delivers a firearm,
    26  rifle  or  shotgun  to  any  person,  either (a) NICS issued a "proceed"
    27  response to the dealer, or (b) ten  business  days  shall  have  elapsed
    28  since  the date the dealer contacted NICS to initiate a national instant
    29  criminal background check and NICS has not notified the dealer that  the
    30  transfer  of  the  firearm,  rifle  or  shotgun to such person should be
    31  denied.
    32    § 5. This act shall take effect on the sixtieth  day  after  it  shall
    33  have become a law.
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